Ohio to give condemned better attorney access

Policy change that also accompanies the first U.S. execution involving a single dose of the drug pentobarbital

By Andrew Welsh-Huggins
Associated Press

COLUMBUS, Ohio — The state will insert intravenous needles into condemned inmates' arms in a more public way so that prisoners will have better access to attorneys in case something goes wrong, a policy change that also accompanies the first U.S. execution involving a single dose of the drug pentobarbital.

In the past, Ohio executioners inserted the needles in the inmate's cell as witnesses watched on closed-circuit TV. No audio was provided and there was no way to hear an inmate if the process was going wrong.

Starting Thursday, the insertions will take place behind a curtain in the death chamber, where an inmate could call out to an attorney _ separated only by a window _ if the insertion process isn't working.

"This will allow the attorney present to observe and allow the inmate to communicate with the attorney through the glass in case any issues arise," said Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction.

Ohio has had problems inserting needles in a handful of cases, including the botched 2009 execution of Romell Broom in which the governor stopped the failed insertion procedure after two hours.

Under the new policy, an attorney concerned about how the procedure is going could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cell phone to contact courts or other officials. Prison officials would decide on a case-by-case basis what to do if an attorney believes there's a problem, LoParo said.

There's a catch with the change: The state will still allow an inmate only three witnesses. For an inmate to be guaranteed fast access to a lawyer, he would have to give up one of his designated witnesses, usually a family member.

The new policy begins Thursday with the scheduled execution of Johnnie Baston, 37, sentenced to die for killing Chong-Hoon Mah, a South Korean immigrant who operated retail stores in Toledo.

Baston's brothers and his public defender, Rob Lowe, are scheduled to witness Thursday.

Even before the change, Ohio had one of the most transparent execution procedures in the country. Several states, such as Missouri, Texas and Virginia, show nothing of the insertion procedure and allow witnesses only to watch as the lethal chemicals begin to flow. In Georgia, officials allow one reporter to watch the needle insertion process through a window.

Greg Meyers, Trial Division Chief Counsel at the Ohio Public Defender's Office, said a lawyer who chooses to witness an execution now has immediate access to a phone if he believes something is going wrong. He said judges will have the final say on problems, which will limit abuse of the system.

"Frivolous claims will not derail or stop an execution," Meyers said Wednesday. "Substantial claims will."

Although the prisoner will now be just a few feet from witnesses as the needles are inserted, a curtain will be drawn and the procedure will still be shown on closed-circuit TVs in the witness-viewing area. Using the TVs is meant to protect the anonymity of the executioners and to reduce the pressure they might feel having an audience watching them work, LoParo said.

Baston is to be executed with pentobarbital, a barbiturate never used by itself in a U.S. execution. Oklahoma uses pentobarbital, but in combination with other drugs that paralyze inmates and stop their hearts.

Ohio switched to pentobarbital after the company that made the drug Ohio previously used, sodium thiopental, announced it was discontinuing production. States around the country have dwindling supplies of sodium thiopental and several have looked for supplies overseas.

Medical experts say Ohio and Oklahoma's dosages are so big they're lethal by themselves. The amount Ohio plans to use _ 5 grams _ is 50 times the normal dosage used in hospitals.

A three-judge Lucas County panel sentenced Baston to die for shooting Chong-Hoon Mah, 53, owner of Continental Wigs N' Things in downtown Toledo. Mah's wife, Jin Ju Mah, found her husband dead in the back of the store after she grew worried because she couldn't reach him on the phone.

The victim's family opposes the death penalty and the execution.

"It's not going to make me feel better to see Johnnie Baston die. It's not going to bring back my dad. It's not going to do any of these things," Mah's son, Peter Mah, said last month. "I just don't think that that's a good resolution for anything."

Baston has given differing accounts of the crime and has suggested at one point that he was present but didn't kill Mah. But his attorneys say they don't dispute his conviction.

Mah was a journalist in South Korea before emigrating and opening two retail stores in Toledo. He started life over as a manual laborer before opening his stores and rarely took a day off, his brother, Chonggi Mah, testified at the end of Baston's 1995 trial.

The Lucas County prosecutor's office acknowledges the family's opposition to Baston's execution but points out the family testified strongly about its anguish and Baston's lack of remorse.

"Most painful of all was watching the convict sit through the trial with a blank expression," Chonggi Mah told the judges who sentenced Baston.

Prosecutors also say Baston has refused to accept responsibility or express remorse.

Gov. John Kasich rejected Baston's plea for mercy last week and he has no pending appeals.

Baston had asked for clemency based on the family's opposition to capital punishment and his chaotic upbringing, with his lawyer saying he was abandoned as an infant and, as a boy, would wander the streets with his dog trying to find his mother. He has never seen her and was rebuffed by his father when he attempted to move back in with him.

Baston arrived at the state death house in Lucasville on Wednesday. He opted against a special meal, as the final meal is called in Ohio, and will be served the regular prison dinner.

Copyright 2011 Associated Press

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